ATHAR MINALLAH, C.J.---Through this consolidated judgment I shall decide the titled petition along with W.P.
No.2336 of 2018 and R.A. 19/2019.
2. The facts, in brief, are that the dispute is regarding land situated at mouza Sorain, Islamabad. The petitioner namely , Ch. Asghar Ali son of Fazal Karim (hereinafter referred to as the 'petitioner ') asserts that he had purchased the disputed land and had also constructed building thereon. It is his case that while he was in possession, respondent No.3 i.e. Sajjad Ghanni son of Malik Abdul Ghanni (hereinafter referred to as the "respondent ") attempted to forcibly dispossess him. The latter informed the police authorities and due to the apprehension of law and order situation, proceedings under section 145 of the Criminal Procedure Code, 1898 (hereinafter referred to as the "Cr.P,C") were initiated.
3. The learned counsel for the petitioner has argued that in disregard to the report submitted by the Incharge of Police Station the premises were initially sealed by the Assistant Commissioner (Rural) and later the matter was disposed of vide order , dated 03.05.2018. The said order was challenged before the learned Additional District and Sessions Judge, Islamabad. The latter dismissed the petition vide order , dated 31.05.2018. It is asserted that the petitioner has instituted a civil suit seeking specific performance of agreement, dated 28.11.2007 in relation to the disputed property . The learned counsel has contended that the learned Magistrate has erred in placing reliance on a report, which pertains to an incident that had taken place on 17.05.2017 while the petitioner was in possession on 13.05.2017. The learned Magistrate while disposing of the proceedings pending under section 145 of Cr.P.C. misread and non-read the record,
4. Through the connected petition i.e. W.P. No.2336 of 2018, the petitioner has assailed orders, dated 31.05.2018 and 13.05.2018, passed by the learned Additional Sessions Judge-V , Islamabad and the learned Justice of Peace, respectively . It is an admitted position that regarding the same incident FIR No.156 of 2017, dated 19.05.2017 was registered. The learned Justice of Peace keeping in view the law laid down by the august Supreme Court in the case titled "Mst. Sughra Begum and another v. Qaiser Pervez and others" [2015 SCMR 1142]" dismissed the petition.
5. The learned counsel for the respondent has contended that the pending litigation: is not between the parties rather the petitioner has filed the suit against other persons; the suit property is other than the disputed property; the material brought on record during the proceedings before the Magistrate established that the petitioner was not in possession.
6. Mr Ansar Ali Kiani, Advocate has appeared on behalf of Syed Aftab Shah and Ch. Abdul Sattar . The latter filed an application seeking to be impleaded as necessary parties. The learned counsel has contended that earlier the petition was decided by a learned Single Judge vide judgment, dated 26.04.2019, whereby the writ petitions were disposed of. The said judgment was challenged before the august Supreme Court and vide order , dated 25.02.2020, the apex Court set-aside the said order . The learned counsel has contended that the applicants seeking impleadment were affected by the judgment. The judgment has been set aside by the august Supreme Court, therefore, any direction given and action taken pursuant thereof have no validity in the light of the order passed by the august Supreme Court.
7. The learned counsel have been heard and the record perused with their able assistance.
8. It is an admitted position that proceedings under section 145 of Cr.P.C. were initiated and pursuant thereto the property was initially sealed and thereafter the Magistrate passed the impugned order, dated 03.05.2018 whereby it was de-sealed. The Magistrate ordered giving possession to Sajjad Ghani. At the relevant time Chaudhry Asghar Ali A was relying on an agreement to sell. The record shows that he could not produce any document in order to establish his title. The material placed before the learned Magistrate was consid ered by the latter as is obvious from the impugned order , dated 03,05.2018. The well reasoned order shows that after taking the relevant matters into consideration, the Magistrate formed a tentative opinion as to who was in possession. The learned Magistrate has not given any finding which could be treated as declaratory in nature. As has been observed by the august Supreme Court in the case titled "Muhammad Boota and 12 others v. Ch. Faiz Muhammad and 8 others"
[1970 SCMR 592], the Magistrate was only required to ascertain which of the parties before it was entitled to possession and that is exactly what happened in the case in hand. It was open to the learned Magistrate to pass an order regarding the custody of the property as has been held by the apex Court in case titled "Shera and others v. Mst. Fatima and another" [1971 SCMR 449]. It is settled law and as highlighted by the august Supreme Court in the judgment titled "Shah Muhammad v. Hag Nawaz and another" [PLD 1970 SC 470] that the primary object in relation to the proceedings under section 145 of Cr.P.C. is to prevent breach of peace arising out of a dispute concerning land and does not empower the Magistrate to adjudicate the rights of the parties. Resolution of such rights exclusively falls within the realm of a civil court. In the instant case it is an admitted position that civil suit is pending before a competent court. The Magistrate while exercising powers under section 145, Cr.P.C. was not empowered to adjudicate the rights. Reliance is placed on the case "Mirza Abdul Razzaq v. Barkat Ali and others" [ 1985 SCMR 1235 ].
9. In the case in hand the learned Magistrate had confined the proceedings to the matters which the latter was empowered to examine under section 145 of Cr.P.C. On the touchstone of the princ iples and law highlighted by this Court in the case titled "Mst. Asma Khursheed and another v. Station Housing Officer, Police Station Aabpara and others" [2018 PCr.LJ 674] no legal infirmity could be pointed out in order to justify interference with the well-reasoned orders, dated 03.05.2018 and 31.05.2018, respectively . It is observed that the said orders will not prejudice any proceedings that may be pending before a competent court regarding rights relating to title as well as possession.
10. In the connected petitions the impugned orders do not suffer from any legal infirmity because the law laid down by the august Supreme Court in the case titled "Supra Begum v. Qaiser Pervez" [2015 SCMR 1142] unambiguously does I not allow registration of another FIR in the same matter . Needless to mention that the Investigating Officer is not precluded from recording a cross version during the course of investigation relating to the already registered criminal case.
11. In the light of the above discussion the petitions are without merit and, therefore, accordingly dismissed.